AFSHAN v. UNITED STATES DEPARTMENT OF STATE et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
SHEEVA AFSHAN, )
)
Plaintiff, )
)
v. ) Case No. 24-cv-3397 (APM)
)
UNITED STATES DEPARTMENT )
OF STATE, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I.
Pro se Plaintiff Sheeva Afshan seeks a writ of mandamus to compel Defendants to
adjudicate her visitor visa application within the “reasonable time” prescribed by Section 555(b)
of the Administrative Procedure Act (“APA”). Defendants move to dismiss. See Defs.’ Mot. to
Dismiss, ECF No. 9 [hereinafter Defs.’ Mot.]. For the reasons that follow, the court grants
Defendants’ motion.
II.
Plaintiff, a British citizen and resident of the United Kingdom, seeks a B1/B2 non-
immigrant visa to visit her family in the United States. Compl., ECF No. 1 [hereinafter Compl.],
at 2–4; Compl., Ex. A, ECF No. 1-1, at 1. After Plaintiff filed her visa application and attended
an interview at the U.S. Embassy in London, the consular officer refused her application and placed
it into administrative processing. Compl. at 2; Compl., Ex. G, ECF No. 1-1 [hereinafter Ex. G], at
7. As of the filing of Plaintiff’s complaint, Defendants had taken no further action on her
application for over 180 days. Compl. at 2. This alleged delay has caused Plaintiff significant
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emotional and financial harm. Id. at 2–4. Plaintiff now asks the court to compel Defendants to
render a timely decision. See id. at 6.
III.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. On a motion to dismiss
for lack of subject matter jurisdiction, the court presumes that it “lack[s] jurisdiction unless the
contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342 n.3 (2006) (internal quotation marks omitted). The burden of establishing jurisdiction thus
“rests upon the party asserting [it].” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). In evaluating a Rule 12(b)(1) motion, the court must accept any “well-pleaded factual
allegations as true and draw all reasonable inferences from those allegations in the plaintiff’s
favor.” See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
To survive a Rule 12(b)(6) motion, the “complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). The court need not, however, “assume the
truth of legal conclusions . . . nor . . . accept inferences that are unsupported by the facts set out in
the complaint.” Arpaio, 797 F.3d at 19 (internal quotation marks and citation omitted).
IV.
To state a claim for unreasonable delay under the APA, a plaintiff must plausibly allege
that (1) “the agency failed to take a discrete action that it is required to take” and (2) “the delay
was unreasonable.” Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 340 (D.C. Cir. 2023)
(internal quotation marks omitted). Defendants move to dismiss on three grounds: (1) there is no
required discrete agency action after refusing Plaintiff’s application, (2) Plaintiff’s claims are
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barred by the doctrine of consular non-reviewability, and (3) Plaintiff fails to state a claim for
unreasonable delay. See Defs.’ Mot. at 4–19. The court dismisses the claim on the first and third
grounds.
A. Clear Non-Discretionary Duty
Plaintiff argues Defendants have a clear, non-discretionary duty to further act on her
application “within a reasonable timeframe” pursuant to Section 555(b) of the APA. Compl. at 1;
5 U.S.C. § 555(b). The D.C. Circuit, however, rejected this very argument in Karimova v. Abate,
No. 23-5178, 2024 WL 3517852 (D.C. Cir. July 24, 2024).1 The Circuit explained that
Section 555(b) “simply expresses a congressional view that agencies should act within reasonable
time frames.” Id. at *3 (internal quotation marks omitted). It does not “plainly define and place
upon consular officers a crystal-clear legal duty after they have adjudicated a visa application to
then forgo any potentially beneficial follow-on administrative processing.” Id. (internal quotation
marks and citations omitted). In other words, Section 555(b) is a “non-specific directive” that does
not clearly require a consular officer to “re-adjudicate [an] already-refused application” like
Plaintiff’s. Id. Plaintiff does not offer any other source of law that might create this non-
discretionary duty. See Shaheen v. Rubio, No. 25-cv-1186 (APM), 2025 WL 3030123, at *1
(D.D.C. Oct. 30, 2025) (declining to dismiss based on Karimova when the plaintiff identified other
grounds creating a non-discretionary legal duty). Plaintiff therefore fails to establish a discrete
legal duty that Defendants are required to fulfill.
1 This court has previously acknowledged the split among judges of this District as to whether Karimova is
precedential authority that binds lower courts. See Berimiasl v. Bondi, No. 24-cv-3284 (APM), 2025 WL 2709771,
at *1 (D.D.C. Sept. 23, 2025). But as in Berimiasal, the court believes that, even if not precedential, Karimova has
“persuasive force” when, as here, the sole grounds that a visa applicant identifies for a discrete legal duty is
Section 555(b). See id.
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Plaintiff responds that because the agency “reengaged” her after refusal by requesting
additional documents for administrative processing, her visa application “remained active,”
creating a new discrete duty to act.2 Pl.’s Opp’n to Defs.’ Mot., ECF No. 15 [hereinafter Pl.’s
Opp’n], at 2. But here too, Karimova is instructive. The D.C. Circuit reasoned that “Section
555(b) does not in any way dictate how the agency can handle [an applicant’s] rejected paperwork
after a decision has been made,” even if the consul “hold[s] onto the application in case
circumstances later change in the applicant’s favor.” Karimova, 2024 WL 3517852, at *4. For the
time being, Plaintiff’s application remains refused, Ex. G, and the consular officer has no clear
duty to act under Section 555(b).
B. Unreasonable Delay
Even if there exists a clear legal duty for the consular officer to act, Plaintiff has failed to
show that the delay in processing is unreasonable. The court looks at six well-established factors
to determine whether an agency’s delay is unreasonable:
(1) [T]he time agencies take to make decisions must be governed by
a rule of reason; (2) where Congress has provided a timetable or
other indication of the speed with which it expects the agency to
proceed in the enabling statute, that statutory scheme may supply
content for this rule of reason; (3) delays that might be reasonable
in the sphere of economic regulation are less tolerable when human
health and welfare are at stake; (4) the court should consider the
effect of expediting delayed action on agency activities of a higher
or competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the
court need not find any impropriety lurking behind agency lassitude
in order to hold that agency action is unreasonably delayed.
2 Plaintiff additionally cites the Foreign Affairs Manual to argue that a “refusal is non-final if further evidence is
requested.” Pl.’s Opp’n at 6. However, the cited section of the manual pertains to immigrant visas, not non-immigrant
visas like Plaintiff’s. See 9 FAM § 504.1. And to the extent the cited section is relevant, it does not appear to support
Plaintiff’s position. See Karimova, 2024 WL 3517852, at *2 (discussing the FAM and stating that, “unless and until”
administrative processing is completed and the application re-opened, “the visa application remains officially
refused”).
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Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984) (internal
quotation marks and citations omitted). “The first two factors are often considered together,”
Pourabdollah v. Blinken, No. 23-cv-1603 (DLF), 2024 WL 474523, at *7 (D.D.C. Feb. 7, 2024),
and the first factor is the “most important,” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C.
Cir. 2008). The fourth factor also often carries substantial weight. See Milligan v. Pompeo, 502
F. Supp. 3d 302, 319 (D.D.C 2020). Accordingly, the court will begin its analysis with these
factors.
First and Second Factors. Congress has not provided a mandatory timetable for processing
non-immigrant visitor visas. See Schneeberger Inc. v. U.S. Dep’t of State, No. 24-cv-00988
(AHA), 2025 WL 2239271, at *4 (D.D.C. Aug. 6, 2025). But “courts in this jurisdiction have
regularly found that the Government applies a ‘rule of reason’ to the review of visa petitions” by
maintaining a first-in, first-out system for visa processing. Fakhimi v. Dep’t of State, No. 23-cv-
1127 (CKK), 2023 WL 6976073, at *8 (D.D.C. Oct. 23, 2023). Indeed, Defendants in this case
have supplied this widely accepted rule of reason by noting the agency’s queue-based approach.
See Defs.’ Mot. at 16–17.
The court looks then “to the length of the delay as a rough yardstick to determine whether
that rule is, in fact, being applied.” Fakhimi, 2023 WL 6976073, at *8. Plaintiff filed her complaint
around six months after the consular officer placed her application in administrative processing.
Compl. at 1. At the time of this opinion, her application has been in administrative processing for
a little over 21 months. See e.g., Niyomwungere v. Blinken, No. 24-cv-1990 (APM), 2024 WL
5075827, at *4 (D.D.C. Dec. 11, 2024) (considering the length of the delay as the time between
the last agency action and the date of the opinion); Pourabdollah, 2024 WL 474523, at *7 (same).
Courts in this District have consistently deemed delays longer than Plaintiff’s to be reasonable.
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See Sarlak v. Pompeo, No. 20-cv-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020)
(collecting cases). “[C]ourts have generally found that immigration delays in excess of five, six,
seven years are unreasonable, while those between three to five years are often not unreasonable.”
Id. (internal quotation marks omitted). The delay in Plaintiff’s case falls squarely on the reasonable
side of the spectrum.
Plaintiff contends that the delay is unreasonable due to the straightforward nature of her
visa application. See Compl. at 2; Pl.’s Opp’n at 3, 9. While it is true that “the complexity of the
task at hand” helps determine whether an agency’s timeline has satisfied a rule of reason, this
consideration is weighed relative to the length of the delay. Mashpee Wampanoag Tribal Council,
Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). Even assuming that the administrative
processing of her visa is as simple as Plaintiff claims, as discussed above, the length of the delay
in this case is not unreasonably prolonged. Thus, the first two factors weigh in favor of Defendants.
Fourth Factor. The fourth TRAC factor considers the “effect of expediting delayed action
on agency activities of a high or competing priority.” TRAC, 750 F.2d at 80. The competing
priorities here are other visa applications subject to first-in, first-out processing. See Defs.’ Mot.
at 16–17. The D.C. Circuit in Da Costa v. Immigration Investor Program Office weighed this
factor in favor of the government, as “moving [p]laintiffs’ petitions to the front of the line would
disrupt competing agency priorities with no overall improvement in the [agency’s] backlog.”
80 F.4th at 343. By seeking to compel agency action, Plaintiff hopes to do the same in this case:
move herself to the front of the line. See Defs.’ Mot. at 16. The court cannot require Defendants
to do so at the expense of other applicants. See Da Costa, 80 F.4th at 343–44.
Plaintiff argues that she is not asking to be moved to the front of the line, but only to have
her application processed in a timely manner. See Pl.’s Opp’n at 5. This argument falls flat.
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To compel Defendants to process Plaintiff’s application any faster would necessarily require the
agency to move her application ahead of others. See Da Costa, 80 F.4th at 343 (“Plaintiffs’
argument that granting relief would not prejudice other applicants rests on wishful thinking about
how the [agency’s] adjudication system works.”). The fourth factor therefore weighs in favor of
Defendants.
Third and Fifth Factors. The third and fifth factors overlap, requiring the court consider
the “nature and extent of the interests prejudiced by delay,” including whether “human health and
welfare are at stake.” TRAC, 750 F.2d at 80.
Plaintiff alleges the delay has caused her emotional and financial harms, including
“heightened anxiety and emotional distress caused by the uncertainty of the situation,” and the
financial repercussions of missing a non-refundable trip. Compl. at 2–4. Additionally,
Defendants’ “delay prevented Plaintiff from accompanying her husband and daughters on their
planned trip,” a trip she hoped to share with her family. Pl.’s Opp’n at 5. This court does not take
lightly the separation of family due to government inaction. However, this factor does not weigh
heavily in favor of the plaintiff when the proposed agency action would pass on similar harms to
others. See, e.g., Akter v. Rubio, 805 F. Supp. 3d 37, 47 (D.D.C. 2025); Niyomwungere,
2024 WL 5075827, at *5. Once again, the court will not compel Defendants to process Plaintiff’s
application more quickly at the expense of other visa applicants.
Sixth Factor. The sixth factor reminds the court that it “need not find any impropriety
lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.”
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TRAC, 750 F.2d at 80 (internal quotation marks omitted). Because Plaintiff does not allege that
Defendants acted with impropriety or bad faith, this factor is neutral.3 See Pl.’s Opp’n at 6.
After weighing all the TRAC factors, this court finds that Plaintiff has failed to state a claim
for unreasonable delay.
C. Due Process Claim
Finally, Plaintiff nods to a due process claim in passing. Compl. at 5; Pl.’s Opp’n at 7.
Relying on Kerry v. Din, 576 U.S. 86 (2015), Plaintiff cites “a liberty interest in travel and family
unity.”4 Pl.’s Opp’n. at 7. However, even setting aside the Court’s fracture on the merits, Kerry
is inapposite. Kerry evaluated the rights of a visa applicant’s citizen-spouse, not the applicant
himself. See 576 U.S. at 88. From the outset, the Court stated that the applicant had “no right of
entry into the United States.” Id. Courts in this District have reached the same conclusion, ruling
that “[a] noncitizen does not have a right to a visa, or a constitutionally protected interest in the
procedures by which such visas are obtained.” Khan v. Bitter, No. 23-cv-1576 (BAH), 2024 WL
756643, at *8 (D.D.C. Feb. 23, 2024) (internal quotation marks and citations omitted). Plaintiff
accordingly has not been denied any substantive or procedural due process rights because of the
delay in her visa application’s processing.
V.
For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 9, is granted. A final,
appealable order accompanies this Memorandum Opinion.
3 Plaintiff cites “Rudra v. U.S. Dep’t of State, 2023 WL 4533744, at 4 (D.D.C. 2023)” for the proposition that
“persistent silence, lack of engagement, and refusal to provide basic updates can tip this factor in favor of the
applicant.” Pl.’s Opp’n at 6. No such case seems to exist.
4 In her complaint, Plaintiff also references “Serrano v. U.S. Attorney General” without a citation. Compl. at 5. The
court could not identify a similarly named case that addresses the due process implications of visa processing delays.
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Date: February 26, 2026 Amit P. Mehta
United States District Judge
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